When to use the big stick...

Employees often err in the workplace. Mistakes are made, instructions are not clearly understood and employees frequently fail to live up to the expectations of the management of the business. This, however, is not the most critical difficulty faced by employers and employees alike when dealing with employee shortcomings. It is the manner in which these problems are addressed that causes the tears to flow.

The average manager or supervisor is no Eli Stone or Ally McBeal. The distinction drawn by the legislature between (1) employee misconduct and (2) poor performance by the employee as a form of incapacity often goes unnoticed in the workplace. Where employees do not perform up to the expectation of the employer, the knee-jerk reaction from managers is usually to take disciplinary action to remedy the situation. This could have the desired effect where the employee committed misconduct. But where the shortcoming is the result of the employee’s inability to perform up to the required standard, employers who dismissed such employees for misconduct are frequently found wanting by the Commission for Conciliation, Mediation and Arbitration (“CCMA”), where employees challenge their dismissals.

In Rema Tip Top (Pty) Ltd v Osman NO and others (case JR 2024/08; as yet unreported judgment handed down 18 August 2011) the Labour Court again emphasised the cardinal need to distinguish between issues of misconduct and incapacity. Judge Bhoola confirmed “that in the context of the [Labour Relations Act 66 of 1995] there is a vast difference between misconduct and incapacity both conceptually and practically.”

He refused to review the CCMA arbitration award that awarded the employee compensation equal to three months’ remuneration for his unfair dismissal.

So, how do employers distinguish between misconduct and incapacity in practice? The authors refer to a difference between an employee that does not want to do the work (misconduct) and one that cannot do the work (incapacity). Whilst this may be an over-simplification, it presents a handy “rule-of-thumb” for managers and supervisors struggling to come to grips with the complexities of employment law in the modern workplace.

The behaviour of an employee who intentionally breaches an employer’s workplace rules is classified as misconduct. Typical examples of this include employees who blatantly refuse instructions, are insubordinate or dishonest. Employees who are negligent in carrying out their duties or instructions, also commit misconduct. This occurs where employees are capable of doing work entrusted to them, but fail to act with the requisite degree of care and skill expected of someone in their position. Examples include the finance clerk who regularly processes payments to creditors, but on occasion fails to ensure that the payment is made into the correct account number.

Misconduct is addressed through disciplinary action where the aim of the disciplinary action is to correct the employee’s behaviour through warnings not to repeat the (mis)conduct. Where the conduct is repeated, despite the previous warnings, the employee may be dismissed. In cases of severe misconduct, dismissal may be appropriate even in the absence of prior warnings.

Where employees lack the ability to perform the functions entrusted to them, their inability should be addressed using the incapacity process. This process is one of co-operation where the employer and employee jointly aim to address the causes of the employee’s poor performance. Our law accepts that the employee is not at fault or to blame for his inability to do the work, but that the difficulty caused by this inability should still be addressed. Using our finance clerk again, an example of incapacity would be where the finance clerk is now expected to use a new software system to process payments, but has not received the requisite training to be able to perform the functions. It is thus clearly not his fault that he cannot fulfil the instructions, but the employer should also not be expected to forever retain him in employment if, after the necessary coaching, training and mentoring, he still cannot fulfil his functions.

By drawing the distinction between misconduct and incapacity, employers will ensure that they ask the right questions in remedying the problem caused by the employee. If the employee is well capable of doing the work, but refuses to carry out the instruction or does so negligently, the employer will ask questions such as (1) was there a valid rule against the employee’s conduct, (2) did the employee breach this rule, (3) was the employee aware of the rule, (4) has the rule been consistently applied and (5) is dismissal the appropriate sanction against such conduct.

On the other hand, if the lapse is caused by the employee’s incapacity, the employer should ask (1) whether the employee was aware of the performance standard, (2) whether the employee failed to adhere to this standard, (3) if the employee was given sufficient time to reach the standard and, if not (4) whether dismissal is appropriate for the failure to achieve the performance standard.

If the employer miscategorises the cause of the problem, the corrective action taken will almost inevitably be inappropriate. This will frequently result in any ensuing dismissal being found wanting at least for following the wrong procedure. This may result in compensation of up to twelve months’ remuneration being awarded to the employee by the CCMA.

Employers should (1) appreciate the fundamental distinction between misconduct and incapacity and (2) ask critical questions during the investigation leading up to a disciplinary or incapacity inquiry. This will limit the risk of the employee who does not want to do the work being treated as an employee who cannot do the work, and vice versa. Maslow famously said “If you only have a hammer, you tend to see every problem as a nail.” By using the incapacity procedure in appropriate circumstances, an employer can greatly reduce the risk caused by using disciplinary action as the only tool to address workplace woes.

Johan Botes